AVTAR SINGH v. STATE OF H. P. — 1987 DIGILAW 79 (HP)

JUDGMENT R. S. Thakur, J.—The appellant Avtar Singh (hereinafter referred to as the accused) has filed this appeal against the judgment of the learned Sessions Judge, Una, dated December 4, 1985, whereby he was held guilty for the offence under section 397 read with section 394 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of five years. 2. The prosecution story before the trial Court was that two ladies, namely, Sarla Devi and Jogindero, wives of Khushal Chand and Hem Raj respectively, who were cousin brothers to each other, residents of Una, had on July 29, 1980, gone to the Gurudwara Baba Subowana in village Haroli at some distance from Una within the territory of Una District, alongwirh their three minor children to pay their homage in the said Gurudwara. After doing so, they came back and stood on a road side bus-stand to catch a bus back to Una. After a short while another person Yog Raj, resident of neighboring village Padhauri, also came over there as he also intended to catch a bus for his village. Meanwhile, the accused came there in the company of his co-accused, Joginder Singh and Hardev Singh from the side of Haroli. The accused then took out a country made pistol which he had hidden at the place where his pyjama was tied with a string and pointed it at the two ladies and said Yog Raj, threatening them with dire consequences in case they raised any alarm. The accused then relieved said Sarla Devi of her golden ear-rings which the accused snatched from her ears causing hurt to the ear-lobes which started bleeding. At the same time the other two co- accused also relieved Smt. Jogindero of her golden earrings and Yog Raj of his wrist watch and a purse containing occurrency notes worth Rs 500 and three coins of Baharein Emirate and then ran away towards a jungle on the side of Jasjon village in the State of Punjab near the border of Una District and before running away from there, the accused again held out a threat that the two ladies and Yog Raj will be done to death in case they raised any alarm. 3. 3. The two ladies and said Yog Raj, however, later on did raise an alarm shouting loot Ha, loot lid’ and on hearing this a number of persons gathered over there and after they were told by the victims of the robbery that the accused and his companions had run away towards Jaijon side after releiving them of their valuables, those persons as also victim Yog Raj himself ran in pursuit of the three accused. Said Yog Raj, however, went only half way and then came back while the accused were still not traced and went home. Some of the other persons, however, continued the chase of the accused and two of them, namely, Mohinder Singh of village Kante and Charan Singh, Head Teacher, Government Primary School Padhauri, went to village Palkwah and caught a bus from there to village Jaijon and at Jaijonthey contacted Bhagat Singh, the then Pradhan of the Gram Panchayat, Jaijon and sought his help in apprehending the accused. Meanwhile, those other persons who were chasing the accused also located the three accused in a Khud near Jaijon. Said Bhagat Singh then alongwith other persons of village Jaijon then also went to the Khud where the accused were being hotly chased, in order to apprehend them and ultimately overpowered the three accused in the khud. At the time of the apprehension of the accused, the accused even fired five rounds from his pistol to scare-away the persons chasing the accused but in vain and the chasing crowd belaboured them by pelting stones in order to over-power them. The three accused were then kept in Gita Bhawan at village Jaijon with the police who were the Incharge of a barrier over there during the night, At that time a cloth-bag was recovered from the accused which contained his red coloured turban, a wrist watch, two pairs of ear-rings of gold and currency notes worth Rs. 310 and two live cartridges and a country made pistol. Next morning the three accused were then taken by said Bhagat Singh, Charan Singh and Mohinder Singh to the police station, Mohilpur in the State of Punjab. 4. Meanwhile, the two ladies after the incident took a bus and went to their home. Their husbands came home that day round about 9 p. m. and the two ladies then narrated the entire incident to them. 4. Meanwhile, the two ladies after the incident took a bus and went to their home. Their husbands came home that day round about 9 p. m. and the two ladies then narrated the entire incident to them. Then Hem Raj, the husband of Jogindero took the two ladies next morning, at about 9 or 10 a. m. to the police station. Una, to lodge a report Just then said Yog Raj also arrived at the police station for lodging report of the same incident, and after ascertaining the facts of the incident from the three victims a case was registered by the Station House Officer. Incharge of Police Station, Una, Shri Harnam Singh at the instance of Smt. Sarla Devi. 5. After registration of the case S. I. Harnam Singh proceeded to the place of incident and after veryfying the facts over-there, he proceeded to Jaijon and when at Jaijon he came to know that all the three culprits had been apprehended and taken to the police station at Mohilpur, he also proceeded to the police station, Mohilpur. In the Police Station, Mohilpur, a case under section 25 of the Arms Act was registered against the accused. The three accused were then produced in the court of the Magistrate concerned at Hoshiarpur who remanded them to judicial custody and when they were in judicial custody, the S. I. Harnam Siogh took steps to get an identification parade held in respect of the three accused by the two ladies and Yog Raj. The Tehsildarcum-Executive Magistrate accordingly held an identification parade within the precinct where the three accused were lodged but out of the three accused, only the accused Avtar Singh volunteered to be identified whereas the other two co-accused declinedlo do so. In that identification parade the accused was identified by Yog Raj and Smt. Jogindero but Smt Sarla could not identify him as she had become nervous. The Una police then obtained the custody of the three accused and also the articles which were the subject matter of this robbery. The police thereafter also took steps to hold an identification parade with respect to the two pairs of ear rings. The Executive Magistrate at Una then held this identification parade and the two ladies were able to identify their respective pair of the ear-rings in the presence of the Magistrate. 6. The police thereafter also took steps to hold an identification parade with respect to the two pairs of ear rings. The Executive Magistrate at Una then held this identification parade and the two ladies were able to identify their respective pair of the ear-rings in the presence of the Magistrate. 6. It appears that the accused was subsequently released on bail but he jumped the bail and he was proclaimed as an absconder at the instance of the Una police whereas the two co-accused Joginder Singh and Hardev Singh were in due course separately challaned, tried convicted and sentenced to five years rigorous imprisonment each. The accused in this appeal, however, was later on arrested by Hoshiarpur Police in a nakabandi when opium weighing 15 kg. was alleged to have been recovered from his possession and he was then arrested by the police in connectiou with the opium smuggling case on April 11, 1985, and during thd period he was in custody, it became known that he was also a proclaimed offender in the instant case. The Hoshiarpur police then intimated the Una police in this connection and the Una police then obtained the custody of the accused and challaned him for the aforesaid offence and after his trial, the learned Sessions Judge, Una, convicted and sentenced him as stated earlier. 7. The learned Counsel for the accused in this appeal before me has assailed the order of conviction returned by the trial court below on a number of grounds. However, before these contentions are considered it would be but proper to have a resume of the material evidence on record. 8. The prosecution in this case examined as many as 16 witnesses. The material witnesses, however, out of them, are as follows: — 9. Smt. Sarla Devi (PW 1) is one of the victims of the robbery in question and also the one who is signatory to the First Information Report in the case. She has stated that about five years ago she along with her devrani, Smt. Jogindero had gone to pay homage to Baba Subowana in village Haroii from their houses at Una, when she was having a child in her lap while said Jogindero had two small children of hers with her. She has stated that about five years ago she along with her devrani, Smt. Jogindero had gone to pay homage to Baba Subowana in village Haroii from their houses at Una, when she was having a child in her lap while said Jogindero had two small children of hers with her. After paying their obeisance at the Gurudwara they returned to the road side and while waiting for the bus at the road side bus-stand alongwith another person, namely, Yog Raj, they saw three persons coming from the side of village Haroii towards them. When they reached near them, one of them who was a Sikh, took out a pistol and painted out the same at her chest and sounded a warning that none should raise any alarm or else they would be done to death and then he snatched the ear-rings of gold from her ears as a result of which blood started coming out of her ear-lobes. Similarly, the golden ear-rings of Jogindero were also removed by one of the three persons who was rather having a plumpy body and the third one relieved said Yog Raj of his wrist watch and currency notes worth Rs. 500. They then ran away towards a jungle in Jaijon side but before leaving the place of incident the accused and his companion threatened them with dire consequences in case they raised any alarm. She further stated that they, however, did raise an alarm shouting ‘loot Ha, loot lia as a result of which a number of persons collected over there and on learning about the incident they rushed in pursuit of the accused. That she and her devrani then boarded a bus at about 5.30 p. m. and came back home where they arrived at about 7 p. m. Her husband, however, was not at home who came back home at about 9/JO p. m. when she narrated the entire incident to him. Next morning she went to the police station and lodged a report (Ex, PA). Later on, she also identified her ear-rings in an identification parade before a Magistrate. She was also taken to Hoshiarpur to identify the accused but she was not able to identify him in the identification parade as she became nervous. 10. Next morning she went to the police station and lodged a report (Ex, PA). Later on, she also identified her ear-rings in an identification parade before a Magistrate. She was also taken to Hoshiarpur to identify the accused but she was not able to identify him in the identification parade as she became nervous. 10. In cross-examination, she stated that she had gone to lodge a report in the company of her devar and when the report was being recorded, Yog Raj, had also came to the police station. 11. She has also been fully supported by her devrani, Smt. Jogindero (PW 2) and also Yog Raj (PW 3). All these three witnesses are themselves victims of this offence of robbery. 12. Charan Singh (PW 4), has stated that on the day of incident that is July 29, 1980, while he was at his house which is on the road side, he saw that some persons were running towards the bus-adda near the Gurudwara and he also followed them and found that Yog Raj (PW 3) was raising hue and cry while the two ladies Sarla and Jogindero, PW 1 and PW 2 respectively, were also there, they then disclosed that they have been robbed at a pistol point by three persons of the ornaments and money and had run towards Jaijon side. Thereafter he and other persons also ran in pursuit of those culprits and reached village Palkwah on foot and from where they took a bus to Jaijon at about 4 p. m. and reached Jaijon within half an hour when they contacted the Pradhan Bhagat Singh (PW 10) of Jaijon and asked him to help them in apprehending the accused. Thev then went towards a khud and chased the accused in the khud and were overpowered by them despite the fact that the accused also fired two shots from his pistol. He clarified that it was he and Mohinder Singh (PW 9) who had travelled by bus from Palkwah to Jaijon with a view to apprehending the accused while the other persons continued chasing the accused on foot. The accused were thereafter kept in a temple at Jaijon during the night and were taken next morning to police station Mohilpur in the State of Punjab when Bhagat Singh Pradhan also accompanied them. The accused were thereafter kept in a temple at Jaijon during the night and were taken next morning to police station Mohilpur in the State of Punjab when Bhagat Singh Pradhan also accompanied them. At that time a pistol and a wrist watch were recovered from the accused, one pair of ear-rings and currency notes of Rs. 310 and three coins of Beharein from his companion Hardev Singh and a pair of ear-rings from the third accused. One live cartridge (Ex. P. 7) was also seized from the accused. 13. In eross-examination, he stated that the distance between Jaiion and the place of incident was about 12/13. kms. 14. Dr. P. C. Kaistha, Medical Officer (PW 5) has stated that on July 30, 1980, he had examined Smt. Sarla Devi (PW 1) when he found minor scratches on and within the hole of ear-rings of both the ears and the middle of the ear lobes which appeared to have been caused within 24 hours with a blunt weapon. He stated that these injuries could be caused if ear-rings were snatched from her. 15. Shri Sukhvinderpal Siugh (PW 6) is the Executive Magistrate-cum-Tehsildar, Hoshiarpur, who had held identification parade in respect of the accused when of the three accused, Joginder Singh had volunteered to participate in the identification parade for the purpose of identification. He has stated that at that time PW Sarla was not able to identify the accused whereas the other two witnesses Jogindero ana Yog Raj had clearly identified him and every time the accused was made to change his place before being identified by each of the three witnesses He has duly proved his report (Ex. PH) in this behalf. 16. Shri Ishwar Dev Bhandari (PW 7) at the relevant time was the Executive Magistrate, at Una, before whom identification parade was held in respect of the two pairs of ear-rings and accordingly to him each of the witnesses, that is, Sarla and Jogindero had identified each pair of ear rings belonging to them. 17. PH) in this behalf. 16. Shri Ishwar Dev Bhandari (PW 7) at the relevant time was the Executive Magistrate, at Una, before whom identification parade was held in respect of the two pairs of ear-rings and accordingly to him each of the witnesses, that is, Sarla and Jogindero had identified each pair of ear rings belonging to them. 17. Hem Raj (PW 8) is the husbaud of Smt. Jogindero who has deposed that on the day of incident, he had gone home from his shop at about 9 p. m. when his wife narrated the entire incident to him and that next morning he took his wife Jogindero and his brothers wife Sarla to the police station where Sarla PW lodged a report. 18. Mohinder Singh (PW 9) has also supported Charan Singh (PW 4) on the point that when they learnt about the incident they joined some other persons who were chasing the accused as they went towards Jaijon side. He and Charan Singh then went to Palkwah and from there boarded a bus to Jaijon where they contacted the Pradhan Bhagat Singh, (PW 10), and with his help they were able to apprehend the accused in a khud near Jaijon who were at that time being chased by other persons also. He has further stated that at that time one pistol, one wrist watch and currency notes of Rs. 310, two cartridges and two pairs of ear-rings of gold were also recovered from the three accused. 19. Bhagat Singh (PW 10) has also supported PWs Mohinder Singh and Charan Singh on the point that on July 29, 1980, when he was present at his house, the two persons came to his house and told him that three deposits one of whom was a Sikh had come to Jaijon side after committing robbery and that he should help them in apprehending the accused. That he then collected some persons from his Panchayat for this purpose and meanwhile they heard some noise in the Khud near Jaijon as the people were chasing the accused. He then, alongwith his companions, also proceeded towards the khud and saw the three accused being chased by some other persons and the three persons including the accused were ultimately over-powered in the said khud. He then, alongwith his companions, also proceeded towards the khud and saw the three accused being chased by some other persons and the three persons including the accused were ultimately over-powered in the said khud. He further stated that the accused at that time even fired five shots from his pistol towards the ground and in the air to avoid apprehension but he was over-powered alongwith others and they were then taken to Gita Bhawan. The accused at that time was carrying ajhola (cloth-bag) which contained red coloured turban, wrist watch, two pairs of ear rings of gold and currency notes worth Rs. 310 and two cartridges. According to him there was a temporary police post at Gita Bhawan at that time and the three culprits were handed over to them as they could not be taken to police station during the night as it was raining. The accused were then taken to the police station, Mohilpur, next morning and the aforesaid articles were taken possession of by the police. 20. Ram Das, A.S.I. (PW 12) has stated that on July 30,1980, when he was posted in the police station at Mohilpur (Punjabi Bhagat Singh, Sarpanch, accompanied by some other persons brought the accused and his two companions to the police station and he then registered a case against the accused for being in possession of an unlicenced pistol under the Fire Arms Act, at that time besides the pistol (Ex. P. 2), two live cartridges (Ex. P. 7) and a wrist watch (Ex, P. 6) were also recovered from the accused from his personal search. He further stated that on the same day the police from the police station, Una, had also came to the police station, Mohilpur. 21. Harnam Singh (PW 14) who was at the relevant time S. H. O. In-charge, Police Station, Una, has stated that on July 30, 1980, he recorded a F. I. R. at the instance of Smt. Sarla Devi (PW 1) and thereafter proceeded towards the spot of incident and after examining the same went to Jaijon. 21. Harnam Singh (PW 14) who was at the relevant time S. H. O. In-charge, Police Station, Una, has stated that on July 30, 1980, he recorded a F. I. R. at the instance of Smt. Sarla Devi (PW 1) and thereafter proceeded towards the spot of incident and after examining the same went to Jaijon. At Jaijon he came to know that the three accused connected with the case in question had been apprehended by the people and taken to the police station, Mohiipur, in the State of Punjab and he then went to the police station, Mohilpur and by that time, Ram Das A. S. I. (PW 12) of the police station, Mobilpur, had already effected recovery from the three culprits and was preparing the papers in this behalf and a case under the Arms Act had also been registered against the accused in the said police station. Some residents of Himachal Pradesh were also at that time present in the police station, particularly, Charan Singh (PW 4), Mohinder Singh (PW 9) and Hari Dass. The three accused after they were medically examined were then removed to the judicial custody at Hoshiarpur on the following day and he then took steps to get an identification parade held in the jail where the accused were kept in the judicial custody by the Executive Magistrate at Hoshiarpur. 22. Gursewak Singh, S. I. (PW 15) has stated that on April 11, 1985 when he was S. H. O. Police Station, Sadar at Hoshiarpur, he apprehened the accused in a nakabandi when the accused was coming from Jullundur on a bicycle with an attache-case kept on the carrier of the bicycle and that 15 kgs. of opium was recovered from the said attache-case and while the accused was in his custody, during the investigation of that case, he came to know that he was a proclaimed offender in the case in question and he, therefore, intimated the S. H. O. Police Station, Una, in this behalf. 23. of opium was recovered from the said attache-case and while the accused was in his custody, during the investigation of that case, he came to know that he was a proclaimed offender in the case in question and he, therefore, intimated the S. H. O. Police Station, Una, in this behalf. 23. Lai Man, S. I. (PW 16) has stated that he was posted in the police station, Una, in April, 1985 when he received intimation that the accused who was a proclaimed offender in the case in question was in the custody of Hoshiarpur police, he then went to Hoshiarpur and took the custody of the accused on April 20, 1985 and he was later on challaned in connection with this case. 24. The accused in his statement under section 313 of the Cr. P. C. has denied all the incriminating facts put to him touching the incident in question except the fact that while in the judicial custody in the sub-jail at Hoshiarpur, an identification parade was held in the sub-jail by the Executive Magistrate, Shri Sukhvinderpal Singh (PW 6) at the instance of the S. H O. Una, in connection with this case. He has further explained that at that time he was arrested and beaten by the police of Mohilpur police station as Jarnail Singh, A. S. I. of that police station had identified him in July 29, 1980 while he was travelling from Hoshiarpur to Dulehar in a bus and the said bus was halted at a barrier of Mohilpur near the police station and that he was thus falsely implicated in this case. 25. Ths accused examined one witness in defence which is not worthy of taking any note as he does not appear to be making any head or tail qua the incident in question. 26. The foregoing narration of evidence leave no doubt in the mind regarding the veracity of the prosecution evidence, 27. The learned Counsel for the accused, as I have alrdady observed, has assailed the order of the trial court on a number of grounds. 26. The foregoing narration of evidence leave no doubt in the mind regarding the veracity of the prosecution evidence, 27. The learned Counsel for the accused, as I have alrdady observed, has assailed the order of the trial court on a number of grounds. The first contention that he has raised is that it is an admitted fact that as per the prosecution, on the very day of incident, a pistol (Ex P. 2) was recovered from the accused by the members of the public and on the next day when the accused alongwith his Co-accused was produced in the police station at Mohilpur alongwith the pistol, the accused was challauned by the Mohilpur Police under section 25 of the Arms Act and as per the copy of the judgment of the Magistrate concerned in that case, dated February 2, 1982, he was acquitted in that case, The evidence which was adduced before the trial court in this case touching the said pistol, namely, that he and the co-accused had robbed Smt. Sarla, Jogindero and Yog Raj at the point of that pistol, therefore, cannot be considered against the accused on the ground of issue estoppel and as such this evidence would be held inadmissible against the accused. In support of this, the learned Counsel has cited a judgment of the Supreme Court in Pritam Singh and another v. State of Punjab, AIR 1965 SC 415, wherein it has been held : "The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim res judicata pro veritate accipitur’ is no less applicable to criminal than to civil proceedings. Thus an acquittal of an accused in a trial under section 19 (f) Arms Act, is tantamount to a finding that the prosecution had failed to establish the possession of certain revolver by the accused as alleged. The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence under section 19 (f). The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence under section 19 (f). The fact was found against the prosecution and could not be proved against the accused in the subsequent proceedings between the Crown and him, under a charge of murder. The evidence against him in the latter proceedings would have to be considered regardless of the evidence of recovery of the revolver from him." The same principle was then reiterated by their Lordships of the Supreme Court in Manipur Administration, Manipur v. Thokchom Bira Singh, 1965 (1) Cr LJ 120, in the following terms :— "The rule of issue estoppel in a criminal trial is that were an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or rss judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of section 403 (2). The rule is not the same as the plea of double jeopardy or autrefois acquit. The rule does not introduce any variation in the Code of Criminal Procedure either in investigation, enquiry or trial. It also does not prevent the trial of any offence as does autrefois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a Court of competent jurisdiction. The rule thus relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court t £ previous trial" 28. There is no dispute with regard to the proposition laid down in the two rulings cited supra. I am, however, of the opinion that this principle would be applicable in cases where the two offences, namely, the one for which he had already been tried and acquitted and the subsequent offence for which he is tried arises out of the same transaction. I am, however, of the opinion that this principle would be applicable in cases where the two offences, namely, the one for which he had already been tried and acquitted and the subsequent offence for which he is tried arises out of the same transaction. If the two transactions are different and distinct in point of time and space, it is doubtful whether this principle would be applicable. In the instant case it is clear that the incident out of which the offence in question has arisen was complete at the time when the accused and his two companions, Hardev Singh and Joginder Singh relieved the three victims, namely, Sarla, Jogindero and Yog Raj, of their valuables. It was only subsequently that when these three accused were chased and apprehended by the members of the public and produced in the police station at Mohilpur on the day following the day of the present incident when the Station House Office at Mohilpur police station chose to register a case against the accused under section 25 of the Arms Act and he was then challaned before the Judicial Magistrate at Hoshiarpur. Even in that case as the record would disclose, the trial appears to have been conducted in a very clumsy fashion, inasmuch as, in the first place the charge that was framed against the accused was no charge in the eye of law since it nowhere discloses any of the ingredients which make out the offence under section 25 of the Arms Act, namely, that he was possessed of this weapon without holding, in this behalf, a licence issued in accordance with the provisions of the Act and the Rules framed therein, that is, in violation of section 3 of the Arms Act etc. Then no attempt appears to have been made by the prosecution to examine the material witnesses. So much so that even the person at whose instance the case was registered i.e., Charan Singh (PW 4) was not examined although he was present in the Court at the time of hearing but was given up as unnecessary and the accused was acquitted on benefit of doubt. 29. So much so that even the person at whose instance the case was registered i.e., Charan Singh (PW 4) was not examined although he was present in the Court at the time of hearing but was given up as unnecessary and the accused was acquitted on benefit of doubt. 29. Thus if the Magistrate while trying the accused under section 25 of the Arms Act had expressed doubt regarding proof that the accused was in possession of unlicenced pistol at the time when he was produced in the police station, Mohilpur, that factor, in my opinion should not come in the way of prosecution in this case to prove that the accused had threatened his three victims, namely. Sarla, Jogindero and Yograj with pistol in his hand before relieving them of their valuables. It is clear from the evidence on record that the accused at the time of commission of this offence had not fired any shot from the pistol or hurt any of the victims but it was only pointed out at them so as to cause apprehension in the minds of the victims to be shot at in case they tried to resist the accused and his companions from accompanying the illegal act, So in such a case ever if it were a toy pistol, that would have been sufficient in the eye of law to bring this act on the part of the accused and his companions within the four corners of section 394 read with section 397 of the I. P. C. 30. In view of this I do not think this contention, on the part of the learned counsel for the accused, has any force. However, in my opinion, even de-hors this factum of pistol having been pointed out at the victims at the time of the commission of the offence in question, there is ample satisfactory evidence on record to connect the accused and his companions with the offence in question. It is quite clear from the evidence on record that the two ladies, Sarla (PW I) and Jogindero (PW 2) and the third person Yog Raj (PW 3) while standing on the road side bus-stand at Haroli near the Gurudwara had been way laid by the accused and his two companions and relieved of their ornaments, wrist watch, cash and including three coins of Behrein Emirate. 31. 31. It is also proved on record that immediately after committing this offence while the accused were running away into a jungle towards Jaijon side, the three victims raised an alarm when a number of person of public gathered over there and after they came to know that the accused and his companions were running away after the commission of this offence, they gave them a chase. It is also proved beyond any shadow of doubt that the accused and his two companions were ultimately apprehended in a Khud near Jaijon village after this incident on the same day with the help of Bhagat Singh (PW 10), the then Sarpanch of Jaijon and the ornaments, wrist watch and the cash was recovered from the accused and his companions at that time which were produced next day in the police station at Mohilpur alongwith the three accused by the members of the public. It is also proved on record that thereafter when the accused and the other two culprits were in the judicial custody in the sub-jail, an identification parade was held in the said sub-jail at the instance of the S. H, O. Una, Shri Harnam Singh (PW 14) which was conducted by Shri Sukhvinderpal Singh (PW 6), the then Executive Magistrate at Hoshiarpur, in accordance with law and as per his report (Ex. PH), the accused was identified by two out of the three victims, namely, Jogindero and Yog Raj on August 7, 1980 and till then the faces of all the three accused were kept muffled right from the day they were produced in the police station at Mohilpur on July 29, 1980. 31-A. It is also clear that after these articles which were the subject matter of this robbery were taken into possession by Shri Harnam Singh, S.H.O., Una, they were got identified by the three victims in the presence of the Executive Maigstrate at Una, Shri Ishwar Dev Bhandari (PW 7) and the three victims were able to identify their respective belongings, namely, the two pair of ear-rings and the wrist watch. 32. It also stands proved that after this challan was put up in the court, the accused absconded and was declared as proclaimed offender when only his two co-accused were tried separately for the same offence. 32. It also stands proved that after this challan was put up in the court, the accused absconded and was declared as proclaimed offender when only his two co-accused were tried separately for the same offence. Both the co-accused were convicted by the learned Sessions Judge at Una and against that order the unsuccessfully took appeals to this High Court and the Supreme Court. 33. The accused admittedly was arrested subsequently by the Station House Officer, police station, Sadar, Hoshiarpur in a nakabandi in April 1985 when 15 kgs. of opium was recovered from his possession and it was thereafter that the Una police took over the custody of the accused and he was tried for the offence in question. 34. The learned Counsel for the accused has next contended that there were discrepancies in the statements of the prosecution witnesses and in fact they made a lot of improvements during the course of their depositions in the subsequent trial when the present accused was tried after his apprehension. There are no doubt, certain discrepancies and improvements, but they do not, in my opinion, at all affect the substratum of the prosecution case. It is clear from the facts and circumstances on record that the case was tried after more than four years of the commission of this offence and after such an inordinate delay the discrepancies in the depositions of the witnesses are bound to creep in. The fact, however, remains that there is not an iota of evidence on record to show that the victims of this offence or other prosecution witnesses had the slightest animus against the accused or his companions. In fact they did not even know them prior to the incident as the accused himself belongs to a village near Jullundur whereas his other two co-accused belong to Batala and Amritsar districts and there is not even a faint suggestion as to why the accused and his companions should have been involved in a false case. In fact they did not even know them prior to the incident as the accused himself belongs to a village near Jullundur whereas his other two co-accused belong to Batala and Amritsar districts and there is not even a faint suggestion as to why the accused and his companions should have been involved in a false case. The three victims, namely, Sarla Devi, Jogindero and Yog Raj, have categorically stated that while they were waiting for the bus on a road side bus-stand near the gurudwara at Haroli, the three accused came from Haroli side, out of whom, the accused pointed out a pistol at them and threatened that they would be done to death in case they raised any alarm and then the three accused relieved the three victims of their valuable articles. In fact it is on record that the accused while stratching away the ear-rings from the ear of Sarla, accused injuries to her ear lobes which is amply proyed by the medical certificate (Ex, PC) which was issued at the time when Sarla was examined by the Medical Officer at Una at the instance of the police after registration of the case and duration of injuries tallies with the time when the offence was committed. 35. The learned Counsel for the accused has also contended that the F. I. R. in respect of this case registered in the police station at Una was bereft of any credibility since there was delay in lodging thereof which can, not only be the result of due deliberations but also the possibility cannot be ruled out that this case was registered only after the Una police had received information that the accused and his companions had been arrested by the members of the public and were handed over to the police in the Mohilpur police station after the articles which were the subject matter of this robbery were recovered from them. I do not find any substance in this contention as well. I do not find any substance in this contention as well. The evidence on record clearly shows that after the incident the two ladies Sarla and Jogiodero were able to catch the bus back to Una only at 4 or 5 p, m. They then reached Una only at about 7 p. m. but on reaching home they found that their husbands had not returned home after the days work and they in fact returned home only at 9 or 10 p. m. when it was rather late for them to go to the police station even when the incident was narrated to them and the two ladies were brought to the police station by the husband of Jogindero only next morning at about 9 or 10 a. m. This delay in lodging the F. I. R. thus appears to have been satisfactorily explained. This was but natural that the two ladies would have lodged the F. I. R. only after they had informed their respective husbands qua the incident in question and they thus naturally waited for their arrival. Next morning they came to the police station only after they had prepared and served food to their kids. So far as the third victim Yog Raj is concerned, it is clear that he belonged to a village near Haroli and after the incident, as per the record, he also participated in the chase of the accused and returned home only after darkness had fallen and the culprits had still not been apprehended. It was thus natural for him also to have gone to the police station Una only the next morning and in these circumstances, in my opinion, the delay in filling the F. I. R. is not fatal to the case. No circumstance has come on record to show that the Una Police had already come to know about the incident or that the three accused responsible for the commission of the offence had already been arrested and were in the custody of Mohilpur Police. No circumstance has come on record to show that the Una Police had already come to know about the incident or that the three accused responsible for the commission of the offence had already been arrested and were in the custody of Mohilpur Police. Rather the then S.H.O. Shri Harnam Singh (PW 14) has categorically stated that he proceeded to the place of incident only after the F. T. R. had been registered and after the inspection of the spot he then proceeded to Jaijon to find out about the accused and he came to know at Jaijon that the accused had been apprehended by the members of the public and handed over to the police in the police station Mohilpur and it was thereafter that he went from Jaijon to police station Mohilpur. 36. It is clear that the incident in question had taken place in broad day light and the victims of the offence had given clear description of the accused in their statatements subsequent thereto. Ft is also proved on record that the accused was clearly identified by the two victims, namely, Jogindero and .Yog Raj, although during the identification parade he was not only made to change the places but also change his clothes before being identified by each of the three victims. No doubt the third victim Sarla was not able to identify him but this is of no consequence as atleast she has herseif explained that she could not do so as she became very nervous. However, at least two of the victims clearly identified him and thus it is of no consequence that Sarla was not able to identify the accused. It rather shows that this identification parade was not a sham affair but a genuine one and thus carrying credibility. 37. However, at least two of the victims clearly identified him and thus it is of no consequence that Sarla was not able to identify the accused. It rather shows that this identification parade was not a sham affair but a genuine one and thus carrying credibility. 37. It may be noted that formerly on the authority of Budh Sen v. State of Himachal Pradesh, AIR 1970 SC 1321, the courts in India held the view that the identification evidence was of a weak nature but in AIR 1978 SC 1770, State of Uttar Pradesh v. Boota Singh and others, the Honble Supreme Court has observed that: "Where the witness correctly identifies the accused at a T. I. parade held by a Magistrate after observing all the essential formalities and taking the necessary precautions and then identifies the accused also in court the evidence of identification can be believed unless the evidence of witness suffers from some other infirmity. Moreover, the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad day light, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes." 38. In the instant ease there is no doubt that this incident took place in broad day light and the victims had occasions to see the accused in a proper manner. No doubt one of the victims Sarla, was not able to identify the accused, but, as I have already observed, this is of no consequence. It is clear that the three accused had waylaid their three victims unexpectedly and thus filinging a surprise on them. It is also on record that the accused had pointed out a pistol at Sarla. Thus it is not unlikely that she became so nervous as not to have noted the appearance of the accused in a proper manner and the same nervousness overtook her at the time of the test identification parade. However, since her two companions were able to identify him in no uncertain terms, it must be held that the accused was identified in a proper manner as one of the culprits in a legal and valid identification parade. 39. However, since her two companions were able to identify him in no uncertain terms, it must be held that the accused was identified in a proper manner as one of the culprits in a legal and valid identification parade. 39. It may, however, be noted that the trial court has fallen into an error while sentencing the accused. When the two sections, i.e., sections 394 and 397 of the Indian Penal Code are read together, it becomes clear that the Court is peremptorily required to sentence the accused to rigorous imprisonment for a period of not less than seven years and in addition to that fine has also to be imposed, meaning thereby that the minimum sentence prescribed is seven years rigorous imprisonment and fine. In the instant case, however, the trial court has convicted and sentenced the accused for the above said offence for a period of five years simpliciter which is less than the minimum prescribed by law. It is, however, clear that in case this Court now undertakes the exercise to sentence the accused In conformity with this legal requirement, the accused has to be afforded an opportunity of being heard. Admittedly, he is at present undergoing sentence in the Central Jail at Nahan in district Sirmaur and his counsel has been coming from Jalandhar to argue this case on behalf of the accused. In these circumstances, it is apparent that this process is bound to entail considerable delay. Besides it is also apparent from the record that the case was registered against the accused sometime in July, 1980 and he was sentenced by the trial court in December, 1985. Thus this sword of prosecution has already been hanging upon the accused for a considerable time and in these circumstances it is not thought proper, at this stage, to undertake the exercise of serving a notice upon the accused to show-cause why the sentence passed against him be not enhanced to seven years and also to impose fine and thus to interfere with the order of sentence passed by the learned trial court. 40. In view of this, it is ordered that while dismissing the appeal of the accused, the order of the trial court dated December 4, 1985, including the sentence is left un-touched. 41. The case property will be disposed of in accordance with the order of the learned trial court. 27-11-1987. 40. In view of this, it is ordered that while dismissing the appeal of the accused, the order of the trial court dated December 4, 1985, including the sentence is left un-touched. 41. The case property will be disposed of in accordance with the order of the learned trial court. 27-11-1987. PRESENT: - Nemo for the appellant. Shri M. S. Guleria, Asstt. Advocate General, for the State. Judgment announced. The accused be intimated forthwith and a copy of the judgment be sent to him through the Superintendent, Model Central Jail, Nahan. A copy of this judgment be also circulated to all the subordinate courts in the State of Himachal Pradesh, Order accordingly.